Lawyers Share Favorite Divorce Deposition Questions

Favorite Divorce Deposition Questions from Family Lawyers. What is your favorite divorce deposition question you can ask in any divorce?

Below, we have a list of the attorneys in the video, their respective cities and web sites.

Q: What is Your Favorite Divorce Deposition Question?

Randall Kessler:

My favorite divorce question that I’ve asked in any divorce is, “Was there something you expected me to ask that I didn’t?” Or “What is it that you were afraid I was going to ask?” Or “We’d like to clear up any of your answers,” and in a deposition, people just not say anything else. That’s probably my favorite.

There’s the law school hypothetical, “Have you stopped beating your wife yet?” How do you answer that? “Yes, I stopped beating her. Well, no, I didn’t stop beating her.” So, there are questions like that, that we like to come up with, but generally my favorite questions are, “What’s the best thing about my client?” Because the other side, they can’t win with that one. Either they’re going to say some good things about my client that I can then say, “Judge, even the other side admitted, she’s a great mom,” or “Judge, I asked the best thing they could say about my client, you know what they said? Nothing. Married for 20 years, they couldn’t say one good thing after 20 years. I mean, no wonder she wants a divorce.” So that’s one you can’t really lose on.

I’ll tell you one funny one. I asked a client, a pretty well-known guy. I said, “Have you ever lied to your wife?” He said, “Yes.” I thought I had him. I said, “All right, what have you lied about?” He goes, “Well, she used to come out of the closet when she’d put on her clothes to go out and she’d ask me, ‘Do I look fat in this?’ and I would always tell her, ‘No.'” I said, “All right, you got me. That was actually pretty funny.”

Scott Friedman:

It’s not a specific question, but I’ve had a series of cases where adults, people who have no minor children left in the house, are really treating each other like the War of the Roses. I’ve had situations where people are destroying other people’s stuff in the house, just doing very aggravating stuff over a period of time while they’re still living together. So, questions about that.

I remember a deposition where I asked the one spouse, the opposing spouse, if they had done this to my client’s bedroom, if they had done this to his closet, whatever, whatever, and then they denied it, and then I had photographs of it all. And so, I was able to lay out the photographs and it was a little bit dramatic at that point.

So, I can’t think of one specific question. I’m sorry. Maybe if I had some time to think about it, I could, but just that concept of it’s more catching people in lies, I guess, more than anything that sometimes is interesting.

Steven Peskind:  You may not want to show your cards at a deposition.

Well, I will tell you, I used to, I don’t do this anymore, I moved beyond this, but I used to enjoy when there was a contested custody case and one of the parents, typically dad, wasn’t really that involved, but wanted custody or 50/50 custody. And what I really kind of enjoyed doing was when I’m examining them and sitting across the conference table from them, I would say, “Okay, who is Junior’s doctor?” And have them stumble over that question and not know who the doctor is, or “Who’s his dentist?” or “What is Susie’s shoe size?” or questions that would show that that parent really doesn’t know anything about the kids.

And the problem with that, which I later learned is, between the deposition and the trial date, they’re going to know Susie’s shoe size. They’re going to know the doctor’s social security number. They’re going to know everything there is to know. So, I learned a good lesson about not showing your cards too much at the deposition if the case is likely going to trial.

Now, that being said, if you have a good guardian ad litem who’s sitting at the conference table with you during the deposition, by showing that dad doesn’t know diddly about the kids, you can win the allegiance of the guardian ad litem, so it may be worth going through that exercise.

Barry Gold:

Favorite divorce deposition question, “Would you please state your full name for the record?” I think it was, you could ask in any case, that would be a one size fits all question.

Really, I don’t have one. If you’d asked it in a case where, I’m not supposed to say custody, I’m supposed to say residential parenting case, there are questions that lend themselves uniquely to those kind of cases as opposed to a one size fits all. But let me give you the concept of a question that I would like to ask in a case that you can pretty much ask in any situation and it can be very insightful. I’ll use it as a parenting case question.

So, let’s say I represent the mother in the case. Wife/mother. So, I would often ask the father in that case, “Are there any aspects of parenting that you will acknowledge that your wife handles better than you do?” And again, it’s not specific to the gender. If I’m representing husband, I could ask wife, “Are there any aspects of parenting that your husband handles better than you do and what would those be?”

The reason why that’s kind of an open-ended question is a reasonable person is going to acknowledge that there are some ways in which the other parent is better in certain aspects of parenting. That’s a reasonable approach. Some people will not want to give that inch. They will then take a very unreasonable position. “No. No. There’s no aspect of parenting at which the other parent is better. I am the superior parent in all aspects.” So, I like that it doesn’t really matter what the answer is, it will have some benefit to you.

I don’t really have a canned question, so to speak, in a divorce case. It really is pretty situation specific. And it also depends greatly on how forthcoming and reasonable the witness is. There’s no reason or need to be difficult with a witness who is being forthcoming. The people you want to reserve the harder questions are for those, of course, are trying to be deceitful or hide things and those are going to get the tougher questions. But I don’t view it as a one size fits all. I’m going to really tailor it to the particulars of the case.

Miles Mason:

The obvious answer is, “Why?” I ask that question a lot. It’s kind of a boring one to discuss, but the point is in a deposition, we want to know the opposing party or the witness’ story. We know they come in with a story or they wouldn’t be in the office in the first place. They’ve got a story to tell. They want to tell it. And the last place I want to hear it for the first time is the courtroom. I want to hear that story. So, I ask, “Why?”

Now, my second favorite question is very simple. “Is there any other information or existing documents that support your story?” Because it’s nice to hear the story, the person may have personally observed something. But is it written down anywhere? Is there a narrative? Is there a police report? Did the person give a statement to a private investigator or a police officer or something to that effect? So that’s terribly, terribly important.

Now, my last series of questions relate to parenting. In a custody case, if I’m deposing the father, I’m going to ask him, “Are you a good father?” And you’d be surprised what people say. Most people are worried about the things that they didn’t get done as a parent during the marriage. And so, they’re going to naturally just give you talking points for the custody case. It’s amazing. And then just listen. So, let’s say a father says, “Well, I wish I had been to more soccer games.” What’s your follow up question? Real simple. “What prevented you from going to those soccer games?” “Well, most of the time, work.” “Well, what do you mean by most of the time? If it wasn’t work, how did you miss the soccer game?” So those are the great questions that you get if you listen.

And then there are similar questions for mothers. Mothers will do the same thing. They’re going to give you their regrets before they give you their great successes and that’s normal. And that’s good about parents, by the way. That’s just human nature.

So, then I’m going to ask a father, “Have you been a good provider?” The moral of this story is that as men and women, mothers and fathers, husbands and wives, there’s no way we can do enough to achieve everything we want to do in every category. You can’t be a perfect parent. And this is me speaking, just my opinion and my experience. It’s almost impossible to be a perfect parent, spouse, and breadwinner. And so most people focus on their shortcomings. And so, in a deposition format, I’m really just looking for a way to get those shortcomings out, to give me an opportunity for the follow up questions. And if I like their answers, they’re very beneficial to my client, I’m going to use them at trial and ask the exact same questions I asked in the deposition, hoping to get those answers.

But correspondingly, if you claim to be a perfect parent, you claim to be a perfect spouse, and you claim to be a perfect breadwinner, good luck with that in the courtroom. Because nobody’s perfect. So, you got to balance between the two of humility, acceptance, regret, and honor. And that’s very difficult for most people going through it for the first time.

Thank you for contributing your experience and expertise to our “Top Family Lawyers Answer Divorce Questions” video series.  You are the best. Cheers!

Randy Kessler
Atlanta, Georgia
Kessler & Solomiany, LLC
ABA Family Law Section, Past Chair

Melissa Avery
Indianapolis, Indiana
Broyles Kight & Ricafort, P.C., Of Counsel
ABA Family Law Section, Past Chair

Joseph W. Booth
Lenexa, Kansas
Law Offices of Joseph W. Booth
ABA Family Law Section, Co-Chair of Publications Board

Scott N. Friedman
Columbus, Ohio
Friedman & Mirman Co., L.P.A.
ABA Family Law Section, Past Chair

Stephen N. Peskind
St. Charles, Illinois
Peskind Law Firm, PC
ABA Family Law Section, Author

Barry L. Gold
Chattanooga, Tennessee
McWilliams, Gold & Larramore
TBA Family Law Section, Past Chair

Miles Mason, Sr.
Memphis, Tennessee
Miles Mason Family Law Group, PLC
ABA Family Law Section, Author